Mitt Romney and the Ahmadinejad Perp Walk

Iran isn’t an easy subject for Mitt Romney. He wants to look tough; he needs to attack President Obama, to suggest that there was some miracle solution Obama could have found that would have stopped Iran’s nuclear program by now, something Obama refused to do because he’s too weak—but that Romney would do the day he was sworn in to office. But Romney also knows, presumably, that the most obvious something is war, or a significant use of force, and he’s not going to touch that idea, not in a Presidential campaign, and not at a time when Americans are sick of George W. Bush’s adventures in the Middle East.

But Romney’s found a way out of his problem—or something he apparently thinks is worth trying. During the final Presidential debate on Monday night, in the midst of an answer on Iran that made it clear his real plan would be to continue and extend Obama’s policy, he said,

I’d make sure that Ahmadinejad is indicted under the Genocide Convention. His words amount to genocide incitation. I would indict him for it.

From a political perspective, this isn’t half bad. It lets Romney present himself as a man of action, and helps him project an air of—to borrow two of his favorite words—strong leadership, while committing him to nothing at all.

It’s easy to promise an indictment of Ahmadinejad. It might even be possible to actually indict him, whether in an American court or an international tribunal. An indictment means little, though, if it doesn’t end in a trial, conviction, and—most important—punishment, and that last part doesn’t happen if Ahmadinejad isn’t in custody.

There’s only a handful of imaginable ways to get Ahmadinejad in custody: one, the Iranian regime falls, and a new government hands him over for trial—a scenario in which the whole exercise becomes sort of a moot point, anyway; two, after he leaves office, and with the threat of trial hanging over his head, he’s stupid enough to travel to a country likely to arrest and extradite him; three, the United Nations or a similar international organization goes into Iran and gets him; or, four, the United States or Israel goes in and gets him.

We can probably dismiss that fourth option out of hand. Violating Iran’s sovereignty like that would surely lead to a larger armed conflict, and then there’s no point bothering with the Ahmadinejad show trial. For now, the Romney team—which is barely even pretending to have thought this through—seems to be indicating that it’s the third option that would prevail. But if you think that Romney and his advisers seriously believe that going through the U.N. is the best way of taking down Ahmadinejad, well, I have a bridge from Iran to the Mediterranean I’d like to talk with you about.

It’s not really even clear where Romney would like to see Ahmadinejad indicted and tried. Maybe he means the U.S. (though it’s hard to see Ahmadinejad as the next Noriega), but one of his advisers reportedly suggested that he actually had the “World Court” in mind. That’s probably an allusion to the International Criminal Court, though the term usually refers to the International Court of Justice, which doesn’t handle criminal matters.

Nor is it clear what, exactly, Romney would indict Ahmadinejad for. “I thought he meant in terms of what’s going on internally in Iran,” John Sununu, a top Romney surrogate, told Talking Points Memo. In context, though, Romney appears to be referring to Ahmadinejad’s threats toward Israel and the Jewish people, though in that case there has been no actual genocide committed. But the Rome Statute, which established the International Criminal Court, does make “direct and public incitement to commit genocide” a crime, and there wouldn’t necessarily have to be an actual genocide committed for incitement to be prosecutable. In the U.S., the Proxmire Act also makes “direct and public” incitement to genocide a crime, but there are legitimate questions about whether a prosecution of someone under the Act—especially in a case where a genocide hasn’t been committed—would survive a constitutional challenge.

Some liberal commentators would tell you that Romney’s proposal also contradicts his party’s stance on the International Criminal Court. That’s not really true—as Foreign Policy’s David Bosco noted in a sharp piece Tuesday, Romney’s going against his adviser John Bolton, but not against the larger G.O.P. establishment. George W. Bush and his Administration favored the I.C.C. when it could be useful to them and the U.S., though they opposed the idea of it having jurisdiction over Americans.

Still, even without a philosophical objection to the court standing in the way, and assuming that Ahmadinejad could somehow be arrested and detained without any real effort or consequences, there would be another real obstacle to overcome. Bosco observes:

Iran is not an ICC member and so the court would only have jurisdiction if the UN Security Council created it (highly unlikely given Moscow and Beijing’s veto power). Even if a Security Council referral happened, the ICC prosecutor has discretion over whether and against whom to bring charges. Fiery rhetoric alone almost certainly would not convince the prosecutor to take action.

Maybe not, but fiery rhetoric, used the right way, can impact a Presidential election. For now, on this subject, that’s all Romney seems to be really concerned with.

Illustration by Tom Bachtell.

Alex Koppelman was a politics editor for newyorker.com from from 2011 to 2013.